pro salvatione regni, and not granted amongst other things, but by itself. But in latter times, when it was settled upon the prince for life, then it was for extraordinary defence, and to have money in readiness for an instant occasion: for it is said, in the very grant to king James, that the king must not be without money; and therefore, towards his charges upon an instant he must have it. And though it was granted on particular occasions, yet that is enough that it was granted on great occasions; and this was granted out of their love to him. The words of the act 1 Jac. speak of a sudden invasion; now whether this is by sea or land, it is general. My lords, I shall now upon the whole observe what I have made good, either upon those general statutes, that the king shall lay no charge, or rather by the books, that the king cannot charge for httle things; or upon the practice of times, wherein every time the king hath been at the charge, and when it hath been on the subject they have decried it. How you, my lords, believe it in point of right, I leave it to your judgments. My lords, I shall go on to the answer of Mr. Solicitor; I have made a reply to all his answers to our positive part. It remains I should offer an answer to his positive part. First, I shall give a general answer to his whole argument; for if the case be, as we conceive it is,, that the point of salus regni is not now in question, the argument will fall off. How far salus regni is in the case notwithstanding, I shall argue over, and examine the nature of his proofs. I am sure he had none from parliament, either act or declaration of both houses; what there is, is against him. The answer of the king, with the judgment of both houses, is a main thing in point of right. I did not receive any legal material record, but that of the abbot of Robertsbridge, nor any book-cases in point, where it is said the king shall charge, but the books 13 Ed. 4. I shall answer these first, practice next, and reasons last. To begin with the case of the abbot of Robertsbridge, which was opened by both sides. It was 25 Ed. 1, the abbot had land agisted ad custodiam maris; and in an action brought, the abbot pleads that he had found a horse for the same land. Here is an argument, that the abbot doth admit that the king might agist ad custod' maris: now if that admittance in this case should be of any authority to alter your judgments, I shall leave it. The abbot's counsel did no more than a discrect counsel would have done. If an action be brought for words, and it appears the action will not lie, what then? If the abbot had a plea that he was agisted to find a horse, what reason had he to put himself on matter of law with the king? So the authority can be nothing against us; and at the best the case did rest there, and went no further. For the book-case, 13 Ed. 4, where it is said, that the king can lay a charge, that book is with reference to toll; and such things are nothing to our main case; and that book will prove strongest against the king. The main case was concerning a new office of measurage erected with a fee: this was pro bono publico, yet an action brought; it began in 11 Ed. 4. Then cometh the parliament in 13, and this was complained of to be against the statutes, that provide that no taxes should be laid. The answer is, let the statute be observed. To the case of toll, which for common necessity to maintain traffic, and because there must be a power in somebody, and without a fee not possible to maintain the charge, it is allowed it may be done by the king: but in our case here is no common necessity, here is a thing that may seldom or never happen. The ground of granting toll is this, because it is pro bono publico; yet if not for common necessity, the king could not do it.-Next, the toll is not so much a charge, it is quid pro quo: in the 5th Report it is said there, that it is no charge; for the benefit in the thing itself will quit the charge. Again, toll is but inter minimum, this of weight; and though an argument will hold a minori ad majus in the negative, because a man cannot do a less, therefore not a greater; but not in affirmatives, because he can lay those, therefore greater, non sequitur. Next, for toll; no man is forced to pay toll, because no man is compelled to come to the market; if he will come voluntary and receive the benefit, then there is reason be should pay it; but this is not our case. Lastly, the law doth allow in this necessity, in case of toll, to the king a power to grant, yet the law doth not leave the king absolute judge of the quantum; for if the toll be not proportionable to the benefit, the patent is to be avoided, as in case of a fine uncertain. Now, my lords, in our case here is no judge of the proportion but the king; so the argument is thus: If the law admit not the king to charge but in common necessity, then not in cases that may happen but seldom or never; if not in small things, then not in greater. I come now to practice and for practice, where there is no opinion, either for records or books to warrant it, it is something weak, especially when there is no urgent occasion. For the practice, I shall give this general answer: if I can satisfy your lordships by authorities of parliament, how the law standeth; the contrary practice, either before or after, is not material; and for that, I must leave it to your lordships. Your lordships have heard us read the words of the acts of parliament, and explain our meaning thereon, and we have brought them home to our case. It will be hard to make an exception if the act be general.-For, my lords, the practice, it consists of two parts. First, arrays of men. Secondly, of shipping, and for shipping; de navibus congregandis,' or 'muni'endis' and inveniendis.' For practice of arrays, I shall lay them by, and give them a general answer: for there were doth make a law, such use it must be as doth prove a tacit consent.-Next, as the use must bind the kingdom, so it must be general over all the kingdom; it is not enough to be at some times and seldom, but it must be semper eadem. And, lastly, it must be reasonable. very few, if any, that went from the beginning | becometh a common law: so as still, if an use of Rich. 2, but only to see if they be armed, et prompti, and that is made by the statute of Winchester. It is one thing to see that they be armed and in readiness; and another thing, at whose charge they shall go that appears not out of those arrays. There is no doubt but the subject, on the statute of Winchester, ought to be ready with arms, and in his county to make defence; and upon occasion he ought to go out of his county, but at whose charge, that is the question. And if those writs of array were the same with the commissions now to the lieutenant, yet I know not how; this is my argument in the case and so your lordships see that a great number of the arrays falls off this way. But if arrays had been, and at the subjects charge, yet against the statute; I leave it to your lordships to judge, how far practice shall be an argument. But for shipping, for writs 'de navibus congregandis,' those are nothing; for the matter is, whether they shall be paid before they go, and many of the ship-writs are of that nature. No doubt but the king may command ad congregandas navcs,' to use them upon occasion; but the matter is, at whose charge they shall be. And for all the writs that are to find ships, I hope those writs are not concluding. : I shall examine on these rules, for these are undoubted rules to examine a law by, the writs of Hen. 3, Ed. 1, and Ed. 3. In all these times the practice, as to this, will not make a law; here will be no proof of a consent.-First, For Hen 3, to 28 Ed. 1, here the subject, as before the complaints, which begot the charter of king John, was upon the charges imposed on the subjects; so afterwards, until the 25 Ed. 1, the law of the liberty of the subject was not settled for though king John did grant his charter, yet the pope did dispense with him, and he broke it, and so it rested till 9 Hen. 3. So all this time the subjects of England were under power; and what in that time he might do by duress, was not by consent. Then, 9 Hen. 3, he made a charter, yet from time to time he broke it, though he desired to be excommunicated if he did it; and so it rested until 25 Ed. 1, and then with much ado was gotten a Confirmatio Chartarum: yet this satisfied not at all. Till 28 Ed. 1, Mag. Chart. not observed. I could shew divers cases pointblank against these. The statute 28 Ed. 1, saith expressly, that this charter was not observed; and it was once a punishment for those that were the breakers thereof. Now when acts of parliament declare that the law of the liberty of England was not observed, I shall not need to shew any record how it was broken: so that all the practice in Hen. 3's time, though much, yet that will not serve the turn; for that government was more of force than law. But for that of Hen. 3's time, I shall give a further answer; the very courts of justice were shut up, then it was in My lords, for those writs that are sumptibus propriis; a writ, and no more, without execution, is not a practice sufficient to make a law, no more than a common evidence, when to prove right by usage. Now whether or no they have shewed a general execution, by obeying and doing it at their own charge, or money levied upon them, I leave it to your lordships; I see no proof. It may be, such writs might be; but that there was an execution of them at their own charge, or money levied on them, we see no such thing. And if writs were to find shipping in these times, it is like the monies were returned by the counties, and so the receipt might shew it, especially if inland coun-flagrante bello. ties, where nothing could be had from them but money. But, my lords, to examine on those grounds, whereby a practice must make a law: if this charge be within the words of the law, no practice can take this out of the way of exception. The practice must either shew that was the common law, and so generalis consuetudo, or must declare the meaning of a statute by constant consent; which must be of those that could consent, and those which did not express a disassent. We are now upon inquiry as on practice, though the king cannot generally lay a charge, yet whether he can do it in this case, to make an exception of law; it must be done by use and practice; as to make a law practice doth not make common law, but as it is a proof of common consent: for all laws are made two ways. First, By express consent of parliament: or, secondly, by use, from time to time, whereby it doth appear this was excepted, and the use And for Ed. 1's time, all the main ones considerable were immediately before the making of that statute; if rightly apprehended, they did particularly occasion that statute; so the subject did deny it, and it is a dis-assent. After 28 Ed. 1, little considerable; and Ed. 1, when he made 28 Ed. 1, when the charters were confirmed, yet he had his salve jure coronæ, which did not please the subject; and afterwards, notwithstanding he made some grants in parliament, yet sometimes he did revoke. Your lordships know what a great renunciation he made; but as some of our historians observe, when he had occasions for moneys he did grant, but otherwise did not ; so that in all his time the subjects did not consent, but as much as they could, did dis-assent: and in the 25th, you see how the practice did alter for commanding of ships. Next for Ed. 2, for his time, we see how he went. In the beginning of his reign he sends but a mandamus rogantes. In the end of his reign, whether his government was more of law than power, I leave to- your lordships; that little practice that way, if it doth come home, is not sufficient to make a law, who was under will. Next for Ed. 3, for him in his best times, you see how he went, he laid not the charge on the subject at the first; alterwards there is no age wherein there were so many complaints as in his time, from the first to the last; and not only in this of shipping, which, as often as it was, there was still complaint, but in impositions on merchants, whereupon lord Latimer was imprisoned so that in point of charge, the subject did inforce him upon it in time of necessity. So that in those times the practice will not be any argument against us. That of 10 Ed. 3, he confessed that he had laid too heavy charges on the subject, and did ask forgiveness; so here was no consent, but a several dissent by their several complaints. And if I take off these three kings reigns, I take off all the force of practice concerning shipping; for from that time afterwards you will find very little, for what cometh afterwards is but for matters of arrays. The next thing is, that every practice that must bring in a law, must be constant and continual, so long together as may bring it into a custom. Now out of what your lordships have heard, if you conceive in the times of those three kings, that they had one way and the subject another, then there is no constant practice to lay it on the subjects: And for Arrays, I conceive them to be no part of the case.-And for the next; if practice make a law, it must be general through the whole kingdom; for that is our case, we are in an inland county; and observe how few writs we have that went over the whole kingdom: Nay, have you any that proveth it indeed? That they went to some inland counties it is true, but that they went to all throughout the kingdom, you shew not. Now if you will have a practice to bring in a law, you must not bring your practice by pieces; at one time in one part, and at another time in another part: for that in one part of the inland counties alone will not be justifiable, for that was to lay a charge on the one, for the maintenance of the whole; and that is against reason, and the reason of this writ. So to charge the whole kingdom, you must shew they went over the whole kingdom, and were obeyed by the whole kingdom; for obedience in some parts, will not bind all, so once or twice will not do it; for the writs that have been produced, many of them went to the sea towns only. Next, my lords, admit that the practice had been constant from king John's time down to Hen, 3.'s, so to this day; under favour, as the case standeth, your lordships could not find such a practice as could now introduce a law. The custom, which must be of a manor, you must not shew the beginning of it, that within time of memory the thing was not so. True, if the time had been long, and I cannot shew when it hath not been, that is time out of mind. VOL. III. To examine this upon the rule; it hath been said, that from the time of Hen. 2, Danegelt was taken: True, it was taken, de fucto, but not de jure. The subject was not at that time charged both with Danegelt and shipping too. Then our course of charging the subject to find shipping, must begin since that time. But peradventure it will be said, as sir Henry Spelman in his Glossary, that when Danegelt went down, this other came in. And peradventure it will be said, this is enough to shew this begun, though but in memory; then it is but to see upon what warrant of law this hegun.-If Danegelt had not been legal, then this to come in instead of that which was not legal is not sufficient. Now for Danegelt it was not legal, and so fallit fundamentum; if it had been legal, yet not so pursued in the course as is legal, so that there is no ground for it on right or wrong. That Danegelt, when it went, it went over all the kingdom, and in a proportionable way to all; yet these writs for shipping were commonly to the sea-towns, and but sometimes to some inland towns. If Danegelt were on the land, and certain, this is on the person, and uncertain; this respects both lands and goods, the other not. There is no such assurance of equal charging in this, or in the other, if Danegelt had been legal, yet whether this coming, in lieu of Danegelt, being of a far different nature, be legal, I leave it to your lordships judgments. : Next to examine it upon another reason, upon the reason of the practice. If the practice went over the whole kingdom from time to time, there was the more equality; but if the practice went over the kingdom but by degrees, sometimes to one part, sometimes to another, though over all the kingdom at times, yet this is not sufficient to make a law. For that act which is unreasonable in itself, and not agreeable to justice, will never make a law for a law will never arise out of an act illegal. Now, my lords, when a charge is laid upon parts of the kingdom, which the whole should hear, it is unreasonable. I will not deny, but in manors, where you are to have a custom, sometimes on one piece, and sometimes on another; this may be good, though it goes not over the whole manor; because in this act there is nothing against justice, for here one man doth not bear the charge for the whole; but it is otherwise in our case. My Lords, I shall go further; as for the inland towns, so for the sea-towns, we do not find a general practice of all sea-towns together, sometimes to one, sometimes to another; if any to all, yet not to all oftentimes. My Lords, admitting arrays would be material in this case, as I conceive they will not; yet under favour they will be no precedent for the defending of the sea, the case doth differ.-For though the king be lord both of sea and land, and bath in them both the sole dominion; yet in the sea he hath the whole property, and in a manner all the considerable profit and pri vilege; the subject hath but the passage of the 3 T sca, and the minima to take fish, not considerable in point of benefit: But for the land, that is our own, and the land of the kingdom is the house of the kingdom. As for the charge of the land to find shipping, there will be a great deal of difference between sea-towns and inland towns: As those that live in sea-towns are in more danger from the sea, so they have more profit and privileges; and that is the reason that in the parliament 13 Ed. 3, the sea-towns should do it in regard to their profit and privileges. Though no positive law doth charge, yet in case of imminent danger, if I should say my private property is become public, it is no mischief, for so it is in some cases: for in this time of imminent danger, the king and subjects are under a law of absolute necessity, and public safety. In all human reason, when the danger is in proxima potentia, we may prevent it; thus if another man's house be on fire, mine may be pulled down to stop it: so that we may see by what grounds we do go in case of absolute necessity. If the king doth command any thing concerning the property of goods, in respect of danger, the execution may not be by any posi tive law merely, which in such cases do cease in furore belli; for those are acted by formalities, and inter arma silent leges. And in these cases, as the king may command my property, so may the subject command the property of another: the books are so, 8 Ed. 4. For hindering the landing of an enemy, bulwarks may be built on my land without consent. So the power is not And for the command to find ships, the positive law is to make those to find ships which are chargeable, as your sea-towns, and for inland towns to find arms; because both are not fitted alike, there is no reason that they should be charged alike. Upon this reason is the case of Beverly put before, 2 Ric. 2, where the complaint is, that they are charged for shipping, being a dry town; they say they were charged indebite. 10 Ed. 3, Shoreham, they plead they never found arms but shipping, and a good dis-only in the king in these cases of necessity, but charge. And in Mat. Paris, upon wars with France, the sea-towns complain and desire help; so that the burden lies on them, if on any. My lords, I have gone over in a general way, as well as I can, and endeavoured to answer the practice; to have gone over all in particular would have required longer time than your lordships can spare. The reasons now only rest to be examined; for if no full authority, nor sufficient practice, reason alone will not argue against a fundamental rule: for we are not now to examine on reason what is fit, and what not, but to see what is the truth. in the subject: and the books say not that the power is only in the king, but I can do it, and the law of necessity is the warrant. Then, my lords, it resteth considerable in this case, what shall be said to be a time of necessity. I speak still by way of admittance, for I grant nothing.-It must be in a danger now acting or in proxima potentia; as fire, though not burning, yet ready to burn: that is, there must be a war, furor belli. Note, That when the king makes proclamation of war, or the king is in the field; and that indeed was not Mr. St. John's meaning, it was taken further than he meant it. It must be in such a danger, when this power is of necessity to be used, as in case of fire; there must not only be fear of fire, for one house must be first actually on fire, before the house can be pulled down, but withal such a danger, that if this be not pulled down, the oder will be lost: and as in case of an enemy, a subject, out of fear of an enemy, cannot build a bulwark on another man's land, but when he is a-coming. So that none of these cases will match ours. The property yieldeth not in fear of danger; but such a danger, as help must come in nunc aut nunquam. This time is not when the king will think there is occasion to exert this power, as in the case of 1588 Though the queen and state did command the burning of those goods and provisions, if an enemy landed; which was a lawful command, and justifiable to be done, so they did land; but could not command them to burn their corn before an enemy did come. The first is, that salus populi suprema lex:' the question is not, what we are to do by necessity, but what is the positive law of the land? The question must now be as before; what power is in the king, and did our forefathers in that time of peace and government leave in the crown, not in case of necessity and public danger; when, with them, salus populi' was premna lex,' and upon that they did ground the rule of goverment? In this case, whether or no, in their consideration, they did conceive for the public good, to leave the power in the king or not, to lay a charge on the people; there the rule came in, salus reipublicæ suprema lex:' and that which they looked on most, was the benefit of the multitude. So that now, my lords, it is not to dispute, whether it be better or worse, but that it was. And to shew there was no such great necessity as can countervail the possibility of prejudice the other way if there do come such a danger, then the subject is at that time under a law of Your lordships know the king may command preservation of life; and all which makes the in case of danger the destruction of all suburbs, subject as willing to obey, as to submit to go- rather than an enemy should come in them. vernment in the creation. This law is of an But if there be a fear only of wars, if the king higher force than any positive law can be. But should command it, how far that is justifiable, admit that this cease in this case, and all posi-I leave it to your lordships judgments. tive laws of property yield to the law of necessity; yet I admit nothing, though I might admit much, and not prejudice the case. All this difference appears out of the case of the Gravesend barge, Duffeild's case, 12 Jac. If there be a storm, or a leak in a ship, that the Doth any danger be actual, it is justifiable for the mastering the king's power over coinage, there was a to throw out the goods; but if he sees a cloud arise, and out of fear of a storm he threw out the goods, I doubt on a jury which way this will go with the bargeman; but if a storm do come, or a leak spring in, in that case the bargeman may do it. So you see upon what law my property yieldeth. That position generally taken, as it is said, may be of a great deal of consequence; for it doth not rest there, solely upon yielding of the laws of property: for all positive laws do cease in that danger: then the positive laws of my liberty and person also do cease. Now, whether or no you conceive all laws of liberty and person cease in this time of danger, when the danger was but conceived and not actual, that I leave to your lordships judgments. And if that rule be general, then why not the other? So we may see the difference from our case; for in that case there is no manner of loss to the subject, for he shall have allowance for his loss, or make suit to the parliament, and they can recompense him; for what is taken for the public good is but borrowed. As in case of shipping, if my goods be cast out to save the ship, every one of the ship is to bear a share; so in our case, either the king must do it, or the parliament: so there is no prejudice. So upon the whole, my answer is, Admit the rule of Salus populi suprema lex;' yet the law of practice doth not yield, till there be an actual enemy, or flagrans bellum. It is not enough that there be but an apprehension. 6 There were divers other reasons urged, (but those two of Salus populi suprema lex;' and of private property must yield to public safety) were the two rationes cogentes; the other were but a pari et a simili; and all those I shall pass over which were only for convenience, as the granting of toll, or a corporation to make ordinance for the good of the corporation: all these will not come home in the manner. My lords, in all these cases a minore ad majus < non valet, negativum valet.' But there are only two reasons urged, which require an answer: The trust that the laws put in the king in greater matters, viz. the shutting of the ports; and the Droit Royal of wars and peace. For the shutting of the ports, there is more difference in point of prejudice of the king than the subject. The king cannot shut the ports but to his own prejudice. Again, the shutting of the ports without cause of necessity, the king hath the loss as well as we; for by that he loseth his customs, and by shutting them he can gain nothing at all. And besides, there is no law at all that hinders him from that. But there is a law saith, that he shall not tax the subject without consent in parliament. The next is the Droit Royal of wars and peace. It is one thing to say, the king can make war and peace; another thing to say, he can charge. In war and peace the king is equally charged with the subject, nay more; and for those things there are no great reasons, but that in the first form of government they might be well suffered. For that cause touch necessity to counterpoise the like thing in another state; in that case the king loseth, and we lose. The king may dispense with penal statutes, and make them as none. laws say he shall not do it? The reason differeth in that case; there is a common necessity that there should be a power in somebody, for acts of parliament are but leges temporis. It is one thing for the king to have power in point of favour, and another thing in point of charge; so in case of pardon there is no hurt if he doth pardon; God forbid that he should not have power to shew mercy. My lords, there are in the case two points more which I shall move. Whether or no, admit the king could command the subjects to find ships, he can give power to the sheriffs to make the assessment as in the writ? The ground is upon this, that in all cases of politic charges the law takes an especial care to make an equality. In parliaments of old, they were always careful to make provision that way, as upon fifteenths and subsidies. And in Danegelt they went such a way, as there could be no inequality; they went by taxing of hides. Now if the law doth make this a legal way of charging, it allows the like way for assessment that is allowed in other cases, such a way as wherein there can be no inconveniency. Now how a sheriff hath that knowledge to lay it on men's estates and lands, I cannot tell. My lords, not to leave a power in the king to lay an arbitrary charge, but in the sheriff to lay more or less on any man; though the law may trust the king, yet it is a question, whether it will trust the sheriff. Nay, I ask if the sheriff be an officer of law in this case; yet the king may command any man as well. Assessments are usually made by others, and not so much by the sheriff. So I do conceive that this is a thing that doth properly belong not to the sheriff, he is not an officer sworn, and it resteth not only in the sheriff, but the undersheriff. So that if the law doth trust the king, yet whether or no this be the way to charge it, I leave it to your lordships judgments. hundred be charged, they have ways to lay it on themselves proportionably. If a The next thing is this: Admit a levy may be well-made, whether the money thus paid, may be brought into the Exchequer, by a Sci. Fa. I do think that this is the first writ that ever was of this kind, I do not find it regularly. My lords, I think it is hard to find where there is a writ that commands and prescribes the manner of levy. It not only gives you power to levy, but sets the way of levying, by imposition, by distress, by selling; for my part, I know no case can match it. The First Day's ARGUMENT of Sir JOHN BANKS, knt. his Majesty's Attorney- |